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HomeMy WebLinkAbout06 010 Sale of Land - Sutton Pk e e e e THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE K" BY-LAW NO. 2006 - 010 BEING A BY-LAW TO AUTHORIZE THE SALE OF LAND TO KINCARDINE SUTTON PARK MALL INC. in trust (Part A and Part B on Plan Attached as Schedule A to Agreement of Purchase and Sale) WHEREAS Section 268 of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides for procedures for the sale of lands declared surplus by municipalities; AND WHEREAS the Municipality of Kincardine has declared as surplus to its needs those lands described as Part A and Part B as shown on Part 1, RP 3R- 7964 in the Municipality of Kincardine (former Town of Kincardine) in the County of Bruce; AND WHEREAS Kincardine Sutton Park Mall Inc. in trust, wishes to purchase from the Municipality of Kincardine those lands described as Part A and Part B, as shown on Part 1, RP 3R-7964, Municipality of Kincardine (former Town of Kincardine) in the County of Bruce, being more particularly described on the Agreement of Purchase and Sale attached hereto as Schedule "A" and forming part of this by-law; NOW THEREFORE the Council for The Corporation of the Municipality of Kincardine ENACTS as follows: 1. That the Mayor and CAD. be authorized to execute such documents, on behalf of The Corporation of the Municipality of Kincardine, as they may deem advisable to convey the lands described in the Agreement of Purchase and Sale attached hereto as Schedule "A" , to Kincardine Sutton Park Mall Inc. in trust. 2. The sale price for the said lands shall be two hundred and twenty thousand dollars ($220,000.00). 3. This transaction is subject to the conditions outlined in the Agreement of Purchase and Sale attached to this By-law as Schedule "A"; and, that fifty per cent (50%) of the net proceeds from this sale be credited to the Kincardine Economic Development Fund; and fifty per cent (50%) of the net proceeds from this sale be credited to the Municipality of Kincardine Capital Reserve Fund. ...2 e e e e Page 2 Kincardine Sutton Park Mall Inc. Land Sale By-Law By-Law No. 2006 - 010 4. This by-law shall come into full force and effect upon its final passage. This By-law may be cited as the "Kincardine Sutton Park Mall Inc. (Philip Place) Land Sale By-law". READ a FIRST, SECOND and THIRD TIME and FINALLY PASSED this 18th day of January, 2006. 5. ~.h Mayor" ~~ Cerk ... ~ ~ . This Is ~1Ie· JL. to BY.-Law AGREEMENT OF PURCHASE AND ~~Iø-Z¡~JllSf=d 1be~ day ~~,< THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE (hereinafter referred to ~ ;be "Vendor") .- BETWEEN and KINCARDINE SUTTON PARK MALL INC. in trust (hereinafter referred to as the "Purchaser") The Purchaser offer to purchase the whole of the property being a Public Highway known as Phillip Place as shown on Schedule "A" attached hereto and marked as "Part A" and ''Part B"and consisting of one acre (the "Property") and on the terms and conditions as herein more psrticularly set forth herein. 1.00 PURCHASE PRICE 1.01 The purchase price shall be the amount $220,000.00, payable as follows: (a) A deposit in the amount $2,000.00 payable to the Vendor's solicitor, in trust, upon acceptance of this Agreement by both parties ("Acceptance"), to be beld in an interest bearing account in accordance with the provisions of this Agreement. (b) The balance, subject to adjustments as set out in this Agreement, by certified cheque to the Vendor, or as it may otherwise direct upon cloaing (as set out herein). It is agreed by the parties that the purchase price is wholly for land with no amount being attributed to buildings, fixtures, and/or chattels thereon. 2.00 APPLICATION OF DEPOSIT 2.0 I Upon completion of the transaction contemplated by this Agreement the deposits together with all interest earned thereon will be credited against the Purchase Price. In the event of termination of this Agreement, other than by completion, the Vendor's solicitor shall, upon receipt of notice of such termination from either party hereto, or both parties after waiver of conditions, be deemed to be authorized and directed by the Vendor to return to the Purchaser all mouies received by the Vendor's solicitor by way of deposits hereunder, together with all interest accrued thereon, and without deduction of any kind, and the Vendor's solicitor shall, upon receipt of such notice, forthwith return such amounts to the Purchaser. 3.00 CLOSING 3.01 The Closing Date shall be June IS, 2006 . Purchaser shall have the option of accelerating Closing to a date to coincide with the sale of part of the Purchaser's adjoining property to Loblaws Properties Limited. Upon closing, vacant possession shall be provided to the Purchaser except as otherwise provided herein. Closing shall be conditional upon the Vendor providing the Purchaser with vacant possession and compliance with all of the Vendor's obligations, covenants, representations and warranties contemplated herein. 3.02 Upon Closing, the Purchaser shall grant the Vendor a municipal utility easement upon the Property, on terms satisfactory to the parties hereto. 3.03 . Upon Closing, the Vendor shall, at the request of the Purchaser deliver separate deeds to separate parties for Part A and Part B of those parIS of the Property as referenced on Schedule A. Notwithstanding the foregoing, the Property shall only be conveyed to a party that is the owner of lands adjacent to the Property to satisfy the parties' intention that the Property shall, upon conveyance, merge with adjacent lands to form a larger parcel. 4.00 CONDITIONS 4.01 This agreement is conditional for a period of twenty (20) days after receipt of the Vendor's Productions described in Article 6.00 herein, to allow the Purchaser, at its own expense, to carry out all acts necessary to achieve: (a) its satisfaction with the results of all soil and environmental tests and all other inspections to be performed by the Purchaser or his agents as more fully descn'bed in article 5.01 herein; (b) receipt from the Vendor of all of the Vendor's Productions descn'bed herein and the Purchaser's satisfaction with said productions upon review thereof; / This agreement is further conditional for a period of ninety (90) after waiver of the conditions set out in I paragraph 4.01 herein to allow the Purchaser: / (a) to complete the sale of part of its lands adjacent to the Property (the "Loblaws Property") to Loblaws Properties Limited. I ... -, -2- satisfaction with said productions upon review thereof; (c) its satisfaction with the financial feasibility of proceeding with the project contemplated herein. 4.02 (b) registration of a site-plan agreement (the "Site Plan Agreement") beyond any appeal periods, with the relevant municipality to develop the Property for commercial and retail uses acceptable in the Purchaser's sole and unfettered discretion. 4.03 In the event the Purchaser has not provided the Vendor with written notice within the above stipulated time periods in articles 4.01 and 4.02 @ 6:00 pm on the fina1 day of each conditional period as set out above that the foregoing conditions are met to the Purchaser's sole and unfettered discretion, , the Purchaser may terminate this I Agreement by providing the other party with written notice together with the return of all deposit mouies and interest earned thereon where applicable. Upon receipt of said notice (together with the return of deposit monies and interest where applicable), this Agreement shall be at an end. All foregoing conditions are for the Purchaser's sole benefit and may be waived by the Purchaser at any time by providing notice of same to the Vendor, its agent or solicitor. 5.00 REPRESENTATIONS AND WARRANTIES 5.01 The Vendor bereby covenants, represents and warrants as follows: (a) No excavation has been made upon the Property, nor has any fill been placed in or upon the Property; (b) The Property is not subject to any watershed, greenbelt, flood plain control or any other restrictions of any conservation authority or any other any governmental authority, department or agency; (c) The Vendor's Productions in Arûcle 6.01 are true and correct and maybe relied upon by the Purchaser; (d) The Vendor agrees, from and after Acceptance of this Agreement by both parties, to allow the Purchaser and the Purchaser's authorized representatives access to the Property from time to time during the conditional periods and hereby authorizes the Purchaser to carry out such reasonable tests and inspections thereof as the Purchaser or its authorized representatives may deem necessary. The said reasonable tests and inspections may include, without limitation; (i) conducting soil, ground-water and environmental tests and such other tests as the Purchaser may deem reasonable, including the inspection of any buildings or other improvements upon the Property and removing samples where reasonable to do so; (ü) taking measurements and conducting surveys; The Purchaser covenants and agrees to repair or pay the reasonable cost of repair of any damage occasioned during and resulting from the inspection of the Property conducted by the Purchaser or its authorized representatives, as outlined above. No inspections/investigations made by or on behalf of the Purchaser shall have the effect of waiving, reducing the scope of or otherwise affecting any representation and/or warranty made by the Vendor herein. (e) On closing, the Vendor will provide a Statutory Declaration executed by a senior officer declaring to the best of hislher knowledge and belief: (i) The Lands have never been used for the storage of waste, or as a waste disposal site as such terms are defined in the Environmental Protection Act (Ontario) R.S.O 1980, as amended. The Property has never been used as a retail gasoline station, and if it has been so used, it has been properly decommissioned from its former use as a retail gasoline station in accordance with all guidelines and requirements set out by the Ministry of the Environment and Energy and any corresponding legislation. (ii) The Property has not been used for storage of nor does it contain any monochlorinated or polychlorinated biphenyl ("P.C.B.'s") or any substances that contain on or more of them, or any substances classified as P.C.B.'s (iü) There are no hazardous or toxic products or waste substances in or on the Property. (iv) The Vendor has not now and on closing shall not be in breach of any provision of the EPAor of any requirement or policy of any other relevant Government authority as may apply to the Property, the Vendor's use of the Property, or the Purchaser's intended use of the Property. (v) The Vendor has no notice of any expropriation proceedings or work orders relating to the lands or any part thereof as at the date of executing this Agreement and as at the date of closing. / / / / / .J / / / / j I I . .., ~ -3- . . (f) There has not been received by the Vendor or anyone on behalf of the Vendor, any notice with respect j to any by-law change affecting the Property or relating to any threatened, pending condemnation or expropriation of the Property nom any governmental department, branch, agency, office or other authority; (g) The Property has not been designated to be of cultural, heritage, historic or environmental significance and is not subject to any order, directive, agreement, claim or regulation in respect of The Heritage Act, the Cemeteries Act, or any Conservation Authority and the Construction Liens Act. (h) Following Acceptance and up to the Closing Date, the Vendor shall maintain the Property as would a careful and prudent owner; 5.02 The Vendor agrees that the representations, warranties, covenants and agreements contained in this Agreement shall survive and not merge on Closing, shall remain in full force and effect and shall errore to the benefit of the Purchaser and its successors and assigns. 6.00 VENDOR'S PRODUCTIONS 6.01 The Vendor covenants that it will deliver to the Purchaser, or to the Purchaser's solicitors, within ten (10) business days after the date of execution of this Agreement the following disclosure materials ("Vendor's Productions") if such documents are in the Vendor's possession or control: (a) copies of all other documents, plans, environmental, soil and marketing studies and reports and any other pertinent documentation relating to the Property in possession or control of the Vendor; 7.00 ASSIGNMENT 7.01 The Purchaser shall be entitled to assign this Agreement in whole or in part at any time prior to Closing and I upon assignment, the Vendor shall look to the Assignee or Assignees for performance of this Agreement and the Purchaser shall be deemed to be released from all obligations contained herein 8.00 NOTICES 8.01 All notices ttom one party to the other in connection with this Agreement shall be in writing and shall be delivered either personally or by facsimile tranamission, addressed to the parties as follows: To the Purchaser: c/o 20Eg1intonAvenue West Suite 1501, P.O. Box 2050 Toronto,Ontario M4R 1K8 To the Vendor: 1475 Concession 5 R.R. No.5 Kincardine, Ontario N2Z 2XO Tel: 416489-6230 Fax: 416489-6222 Attention: John deRosenroll Tel: (519) 396-3468 Fax: (519) 396-8288 With a copy to: White, Duncan, Linton LLP 45 Em Street Waterloo, Ontario N2J 4B5 Attention: Steven J. O'Melia Tel: (519) 886-3340 Fax: (519) 886-8651 Any notice so delivered shall be deemed to have been validly and effectively given and received at the time of such delivery or tranamission, as the case may be. Either party may change its address for notice or provide alternate facsimile numbers by giving the other party at least two (2) days' written notice of such change in address, or if applicable, facsimile number. 9.00 TITLE AND REQUlSmONS j / / j ¡ J / 9.01 The Purchaser shall not call for the production of any title deed, abstract, survey or other evidence of title to the Property except such as are required herein to be delivered to the Purchaser or otherwise as such as are in the possession or control of the Vendor. The title to the Property is to be good and marketable fi'ee nom all encumbrances, registered restrictions, charges, liens and encumbrances, except as otherwise specifically provided in this Agreement. 9.02 The Purchaser is allowed ucû1 ten (10) days prior to the Closing Date (the "Requisition Date") to exantine title / at its own expense. If within that time any valid objection to title or to the fact that the present use may not lawfully be V continued, or that the building(s) on the Ptoperty may not be insured against fire, except as noted above, and save as to any valid objection so made by such day and except for any outstsnding municipal work order or deficiency notice or any " 'T r -4- '. objection going to the root of title so made until the Closing Date, is made in writing to the Vendor which the Vendor I shall be unshle or unwilling to remove or satisfY and which the Purchaser will not waive, this Agreement shall, notwithstanding any intermediate acts or negotiations in respect of such objections, be null and void upon notification by the Purchaser and the Vendor shall forthwith take all steps necessary to ensure the return of the Deposit and interest thereon to the Purchaser. I~OO ADJUS~ENTS 10.01 The Vendor and the Purchaser shall adjust the Purchase Price, as of the Closing Date, in respect of realty taxes j and local improvement rates and charges subject to the provisions of this Agreement, and all other amounts properly and usually the subject of, adjustment in connection with the ownership, operation and management of the Property of wbatsoever nature as mutually agreed to by the parties acting reasonshly (collectively the" Adjustments"). 11.00 GENERAL PROVISIONS 11.01 Provided that this Agreement shall be effective to create an interest in the PropertY ouly if the subdivision j control provisions of the Planning Act are complied with by the Vendor on or before the Closing Date and the Vendor hereby covenants to proceed diligently at its own expense to obtain any necessary consent on or before completion. 11.02 The Purchaser shall be credited towards the Purchase Price with the amount, if any, which it shall be necessary for the Purchaser to pay to the Receiver General of Canada in order to satisfY the Purchaser's liability in respect of tax payable by the Vendor under the non-residency provisions of the Income Tax Act by reason of this sale. The Purchaser shall not claim such credit if the Vendor delivers on completion the prescribed certificate or its statutory declaration that it is not then a non-resident of Canada 11.03 Time shall in all respects be of the essence hereof provided that the time for doing or completing any matter provided for herein may be extended or abridged by an agreement in writing signed by the Vendor and the Purchaser or by their respective solicitors who are hereby expressly appointed in this regard. 11.04 Any tender of documents or money hereunder may be made upon the Vendor or the Purchaser or their respective solicitors on the day for completion of this Agreement. Money may be tendered by bank draft or cheque certified by a Canadian chartered bank, trust company or Province of Ontario Savings Office. 11.05 This Agreement shall constitute the entire agreement between the Purchaser and the Vendor. The parties acknowledge that other than as herein set out there is no representation, warranty, collateral agreement or condition, whether direct or collateral, or express or implied which induced either party hereto to enter into this Agreement or on which reliance is placed by any such party, or which affects this Agreement or on which reliance is placed by any such party, or which affects this Agreement of the Property or which is supported hereby other than as expressed herein. This Agreement shall be read with all changes of gender or number required by the context. 11.06 The Purchaser shall deliver on closing the Purchaser's certificate of registration under Subdivision D ofDivision V of the Excise Tax Act (Canada), including the assigned registration number under the provisions of the Excise Tax Act relating to GST and a ststutory declaration of the Purchaser confirming continued status as a registrant at Closing; or, in the event that the foregoing are not delivered, the Purchaser shall pay GST to the Vendor, as agent for the Crown, on Closing. 11.07 If any relevant date set out in this Agreement, including but not limited to the Closing Date and the Condition Date, falls on a Saturday, Sunday or statutory holiday, then in such case the date shall automatically be extended to the first day following the Sunday or statutory holiday, whichever is applicable. 11.08 If the Vendor's spouse has not joined in this Agreement or executed Spousal Clause below, the Vendor covenants to obtain the consent of the Vendor's spouse to this transaction on or before completion, or the Vendor represents and warrants that the Vendor is not a spouse within the meaning of the Family Law Act, 1986 or that the Vendor is a spouse who is not separated and the Property is not ordinarily occupied as a family residence by the Vendor and the Vendor's spouse or that the Vendor is a spouse who is separated and the Property was not at the time of separation ordinarily occupied as a family residence by the Vendor and the Vendor's spouse or that another Property is designated as a matrimonial home by both spouses, that such designation is registered and not cancelled and that the Property is not so designated by either or both spouses, or that the Vendor's spouse has released all rights under Part II of the said Act by a separation agreement. The Vendor shall, if requested by the Purchaser, deliver a certification at the time of completion verifying that this representation and warranty is true and correct. 11.09 With respect to any property in Ontario, where the transaction contemplated herein will be completed y electrouic registration pursuant to Part III of the land Registration Reform Act, R.S.O. 1990, Chapter LA, and any amendments thereto, the parties hereto acknowledge and agree that the deliver y of documents and the release thereof to the other may, at their solicitors discretion: a) not occur contemporaneously with the registration of the TransferlDeed (and any other registerable documentation), and b) be subject to conditions whereby the solicitor receiving documents and/or mouies will be required to hold them in trust and not release them except in accordance with the terms of a written agreement between the solicitors. 11.10 In the event the Purchaser requires third party financing to complete this transaction and such lender is not prepared to complete the transaction on the Closing Date, the date will be extended to such reasonshle date(s) as may be required. j j J I j ! j j j ~ 'I , .. . ;;:;):, '-,~ .. ~ . .? 11.11 The Vendor and the Purchaser agree that this Offer to Purchase when executed and the executed acceptance / thereof may be communicated by facsimile and that such Agreements shall be legal and binding upon the parties thereto V The Vendor and the Purchaser further agree that reproductions of signatures by telecommunications win be treated as origina1s. 11.12 This Agreement has been negotiated and approved by counsel on behalf of the parties hereto, or the Vendor ¡ acknowledges hereby that it has been advised to retain counsel to negotiate this agreement and has chosen to waive its rights to same. Notwithstanding any rule or maxim of construction to the contrary, any ambiguity or uncertainty will not I be construed against either the Purchaser or the Vendor by reason of the authorship of any of the provisions hereof. 11.13 This Agreement shall be binding upon and enure to the benefit of the Vendor and Purchaser and their representative successors, administrators and assigns, except as described herein. 12.00 TIME FOR ACCEPTANCE 12.01 This Offer to Purchase shall be irrevocable by the Purchaser and shall be open to acceptance by the Vendor, until 6:00 p.ut. on the "\ \ day of "'!."'......~' 2oo! after which time, if it has not been accepted in writing by the Vendor, same shall be void and the depos shall be returned to the Purchaser without interest, penalty or deduction. Upon Acceptance, this Offer to Purchase shall constitute a binding Agreement of Purchase and Sale. IN WITNESS WHEREOF the Purchaser hereto has executed this Agreement this I r day of JJ~ ,2005. ./ Witnessed by: KINCARDINE SUTTON PARK MALL INC. in trust Æ~~o bind the corporation. IN WITNESS WHEREOF the Vendor hereto has executed this Agreement this 2.:3. day of -ç Q.A^, 20~ ~ .\..:<"-- Witnessed by: THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE .4~'-·:·'·~··/~"/""""'-:::" >~~~... .... ......-==..- v' . - . -'- ~''G.'""'. . ~- ",-' ~ , '- . ~?:.: ,-~ - ~":;..: .... . ~.,. . ':¿ 'l ~-._ ~ ../, -~~ ..... ~ ,'-' =-'"'/.. .i~~ _ _ ..../,¿...::/..-~ I~~"~ e. ~ ~pr ~'- - . .r- /.~ 'f ...... . .... . .... "- '. " \: \' '- f -~. <l)~r ~o\ - Ó-'"/ .~~.J.j , John de Rosenron ~ Pi Schedule» "A" to Agreement of Purchase and Sale - Kincardine Sutton Park Mall Inc. ..- ... ;¡, '.' II. 1'1 . --J GA~r - . ~- ..... .... ..-..---.=..-.. ~ 00Ò00 '0_ ~.. -------- 0 I .." ..... == ~""':::;2:_'" - '-. . -. ..- , It It ~ .. . 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